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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act
(Resent with correct subject header)

George writes:

> POST-publication control, such as removing libelous or offensive or
> questionable content, has been held to be protected under CDA and
> other legal theories.
>
> I think WikiLeaks are confused.

It's pretty clear that Wikileaks's analysis didn't come from a lawyer
familiar with CDA caselaw.


--Mike





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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
Mark writes:

> It's certainly possible (and I'm not saying this is what happened
> because I have absolutely no idea) that the articles were being
> developed by someone who interviewed people who work for the
> Foundation, and that person was forbidden to submit the articles, or
> told to remove some things.

So far as I can determine, the articles were accessible by anyone in
the world who was capable of using "Recent changes."

So whatever happened, happened "post-publication" as far as the law
goes.

I'll note that Wikileaks is wrong to assert that the Foundation
removed the stories. (And Slashdot is wrong to repeat this
assertion.) If that had been our method of operation, I could have
removed the stories myself. Instead, we went to great lengths to
explain what our legal concerns were, privately, to representatives of
the community.

My view continues to be that the Foundation should almost never engage
in direct editing or removal of project content, except (as in DMCA
takedown notices) when we are required to do so by law.

Anything else should normally entail engagement of community members.


--Mike



\

>
> End of foundation-l Digest, Vol 50, Issue 84
> ********************************************


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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
On Sun, May 18, 2008 at 8:08 AM, Mike Godwin <mgodwin@wikimedia.org> wrote:
>
> (Resent with correct subject header)
>
> George writes:
>
>> POST-publication control, such as removing libelous or offensive or
>> questionable content, has been held to be protected under CDA and
>> other legal theories.
>>
>> I think WikiLeaks are confused.
>
> It's pretty clear that Wikileaks's analysis didn't come from a lawyer
> familiar with CDA caselaw.
>
>
> --Mike
>
>
>
>
>
> _______________________________________________
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> foundation-l@lists.wikimedia.org
> Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l
>

I think we all may be missing the point here, however. Regardless of
the legalities, what possible business could WMF have in keeping
Wikinews from publishing stories that are critical of WMF? Is this not
about as clear a conflict of interest as you get?

Personally, I don't agree that Virgin Killer is child porn (or porn at
all, I see nothing sexual at all about the image), but the fact that I
disagree with the story makes me no less disturbed to see it getting
quashed. I'm glad for Wikileaks, this type of thing is totally
unacceptable, and I'm doubly disappointed to see it from WMF. (Doesn't
Wikinews have some type of "not censored" policy? Does that only apply
if they don't dare criticize Wikimedia?)

--
Freedom is the right to say that 2+2=4. From this all else follows.

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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
On Sun, May 18, 2008 at 8:10 AM, Mike Godwin <mgodwin@wikimedia.org> wrote:
>
> Mark writes:
>
>> It's certainly possible (and I'm not saying this is what happened
>> because I have absolutely no idea) that the articles were being
>> developed by someone who interviewed people who work for the
>> Foundation, and that person was forbidden to submit the articles, or
>> told to remove some things.
>
> So far as I can determine, the articles were accessible by anyone in
> the world who was capable of using "Recent changes."
>
> So whatever happened, happened "post-publication" as far as the law
> goes.
>
> I'll note that Wikileaks is wrong to assert that the Foundation
> removed the stories. (And Slashdot is wrong to repeat this
> assertion.) If that had been our method of operation, I could have
> removed the stories myself. Instead, we went to great lengths to
> explain what our legal concerns were, privately, to representatives of
> the community.
>
> My view continues to be that the Foundation should almost never engage
> in direct editing or removal of project content, except (as in DMCA
> takedown notices) when we are required to do so by law.
>
> Anything else should normally entail engagement of community members.
>
>
> --Mike
>
>
>
> \
>
>>
>> End of foundation-l Digest, Vol 50, Issue 84
>> ********************************************
>
>
> _______________________________________________
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> foundation-l@lists.wikimedia.org
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>

"Asserting your concerns privately", from a position of authority, is
just a roundabout way of not having the "official stamp" on an
official action. If the concerns had been brought up PUBLICLY, and a
regular community discussion held (I don't know the exact way Wikinews
handles deletion discussions, I'm sure they have some procedure), and
the community agreed, then we can say it's a community action.
Otherwise, backroom stuff is backroom stuff, regardless of who pulled
the trigger.

--
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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
> I'll note that Wikileaks is wrong to assert that the Foundation
> removed the stories. (And Slashdot is wrong to repeat this
> assertion.) If that had been our method of operation, I could have
> removed the stories myself. Instead, we went to great lengths to
> explain what our legal concerns were, privately, to representatives of
> the community.

The WMF expressing legal concerns about the stories is effectively
identical to the WMF removing the stories. The WMF wants the stories
gone, the stories go - that's the short of it. If the general counsel
of the WMF tells you there are legal concerns regarding one of your
articles, you delete the article, you don't have any say in the
matter, regardless of whether or not the WMF actually demands
deletion.

That said, the WMF removing stories because of legal concerns has
always been accepted (albeit reluctantly) by the community as
something the WMF has to do. The WMF has a responsibility to obey the
law, whether we like it or not. There is a big difference between
removing the articles due to legal concerns and, as Wikileaks seems to
claim, censoring articles critical of Wikipedia. As long as it was
just the former (and I have no evidence to suggest otherwise), I have
no problem with it.

I think the claims about losing CDA protection stem from a simple
misunderstanding of terminology. When the CDA talks about publishing
something, that refers to the bit where someone presses the "submit"
button. When Wikinews talks about publishing something, the refer to
the bit where it's decided that an article is ready to be removed from
the "in development" section. The articles were, as I understand it,
removed inbetween those two stages. As far as the CDA is concerned,
the WMF stepped in post-publication to remove content they saw a
problem with, which they are certainly allowed to do.

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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
Todd writes:

> I think we all may be missing the point here, however. Regardless of
> the legalities, what possible business could WMF have in keeping
> Wikinews from publishing stories that are critical of WMF? Is this not
> about as clear a conflict of interest as you get?

The Foundation has no interest in preventing Wikinews from publishing
a story critical of WMF. If you are under the impression the stories
were censored because they were critical of WMF, then you have your
facts wrong. Anyone who says this is simply mistaken.

> "Asserting your concerns privately", from a position of authority, is
> just a roundabout way of not having the "official stamp" on an
> official action. If the concerns had been brought up PUBLICLY, and a
> regular community discussion held (I don't know the exact way Wikinews
> handles deletion discussions, I'm sure they have some procedure), and
> the community agreed, then we can say it's a community action.

Unfortunately for your point, not all legal concerns can be discussed
with you in advance in public. If you think about it, you will see why.


--Mike





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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
Thomas writes:

> The WMF expressing legal concerns about the stories is effectively
> identical to the WMF removing the stories. The WMF wants the stories
> gone, the stories go - that's the short of it.

That is hardly the case. It's always possible for editors to refuse to
follow our advice. If there's a way to compel volunteer editors to
do anything, I haven't come across it.

> If the general counsel
> of the WMF tells you there are legal concerns regarding one of your
> articles, you delete the article, you don't have any say in the
> matter, regardless of whether or not the WMF actually demands
> deletion.

If you are under the impression that I told someone they had no choice
but to accede to my recommendations, then you are mistaken. I took the
trouble of explaining at some length what our legal concerns were.
These concerns included legal protection of Wikinews and its
individual contributors.

> That said, the WMF removing stories because of legal concerns has
> always been accepted (albeit reluctantly) by the community as
> something the WMF has to do. The WMF has a responsibility to obey the
> law, whether we like it or not. There is a big difference between
> removing the articles due to legal concerns and, as Wikileaks seems to
> claim, censoring articles critical of Wikipedia. As long as it was
> just the former (and I have no evidence to suggest otherwise), I have
> no problem with it.

That's good to hear. But in this instance the WMF did not remove
stories.



--Mike





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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
On 18/05/2008, Mike Godwin <mgodwin@wikimedia.org> wrote:
>
> Thomas writes:
>
> > The WMF expressing legal concerns about the stories is effectively
> > identical to the WMF removing the stories. The WMF wants the stories
> > gone, the stories go - that's the short of it.
>
>
> That is hardly the case. It's always possible for editors to refuse to
> follow our advice. If there's a way to compel volunteer editors to
> do anything, I haven't come across it.

Sure, but it's not going to actually happen.

> > If the general counsel
> > of the WMF tells you there are legal concerns regarding one of your
> > articles, you delete the article, you don't have any say in the
> > matter, regardless of whether or not the WMF actually demands
> > deletion.
>
>
> If you are under the impression that I told someone they had no choice
> but to accede to my recommendations, then you are mistaken. I took the
> trouble of explaining at some length what our legal concerns were.
> These concerns included legal protection of Wikinews and its
> individual contributors.

As I explicitly said, it doesn't matter if you actually demand it or
not, just saying there are legal concerns is effectively a demand for
its removal.

> > That said, the WMF removing stories because of legal concerns has
> > always been accepted (albeit reluctantly) by the community as
> > something the WMF has to do. The WMF has a responsibility to obey the
> > law, whether we like it or not. There is a big difference between
> > removing the articles due to legal concerns and, as Wikileaks seems to
> > claim, censoring articles critical of Wikipedia. As long as it was
> > just the former (and I have no evidence to suggest otherwise), I have
> > no problem with it.
>
>
> That's good to hear. But in this instance the WMF did not remove
> stories.

Yes, you did.

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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
Thomas Dalton wrote:
> As I explicitly said, it doesn't matter if you actually demand it or
> not, just saying there are legal concerns is effectively a demand for
> its removal.

No, it is not.



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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
Thomas Dalton wrote:
> There is a big difference between
> removing the articles due to legal concerns and, as Wikileaks seems to
> claim, censoring articles critical of Wikipedia.

Wikileaks is simply wrong when they say that this was an instance of
"censoring articles critical of Wikipedia". Of course, Wikinews is
supposed to be NPOV, but within that framework there is absolutely no
prohibition about producing factual articles that would tend to show the
Wikimedia Foundation in a negative light.

--Jimbo

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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
On 18/05/2008, Jimmy Wales <jwales@wikia.com> wrote:
> Thomas Dalton wrote:
> > As I explicitly said, it doesn't matter if you actually demand it or
> > not, just saying there are legal concerns is effectively a demand for
> > its removal.
>
>
> No, it is not.

Yes, it is. When a person in authority makes a suggestion that is
within the remit of that authority, there is no effective difference
between that and an order.

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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
On Sun, May 18, 2008 at 10:10 AM, Mike Godwin <mgodwin@wikimedia.org> wrote:
> My view continues to be that the Foundation should almost never engage
> in direct editing or removal of project content, except (as in DMCA
> takedown notices) when we are required to do so by law.
>
FWIW, I think that's an absolutely terrible decision that is the cause
of a great deal of completely unnecessary ill-will toward the
Foundation and its projects. The only semi-coherent explanation for
it seems to be that it is required for protection under Section 230 of
the CDA, but as you and I both know this is absolutely not correct.
In fact, everything I have read on the matter suggests that the whole
point of Section 230 of the CDA was to allow service providers to
engage in direct removal of project content without becoming liable
for that which it failed to remove.

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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
No - yes - no - yes... nonsense, you are free to choose as you have no
legally binding contract with WMF to do as they say.

John

Thomas Dalton skrev:
> On 18/05/2008, Jimmy Wales <jwales@wikia.com> wrote:
>> Thomas Dalton wrote:
>> > As I explicitly said, it doesn't matter if you actually demand it or
>> > not, just saying there are legal concerns is effectively a demand for
>> > its removal.
>>
>>
>> No, it is not.
>
> Yes, it is. When a person in authority makes a suggestion that is
> within the remit of that authority, there is no effective difference
> between that and an order.
>
> _______________________________________________
> foundation-l mailing list
> foundation-l@lists.wikimedia.org
> Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l
>

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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
On Sun, May 18, 2008 at 8:53 AM, Mike Godwin <mgodwin@wikimedia.org> wrote:
>
> Todd writes:
>
>> I think we all may be missing the point here, however. Regardless of
>> the legalities, what possible business could WMF have in keeping
>> Wikinews from publishing stories that are critical of WMF? Is this not
>> about as clear a conflict of interest as you get?
>
> The Foundation has no interest in preventing Wikinews from publishing
> a story critical of WMF. If you are under the impression the stories
> were censored because they were critical of WMF, then you have your
> facts wrong. Anyone who says this is simply mistaken.
>
>> "Asserting your concerns privately", from a position of authority, is
>> just a roundabout way of not having the "official stamp" on an
>> official action. If the concerns had been brought up PUBLICLY, and a
>> regular community discussion held (I don't know the exact way Wikinews
>> handles deletion discussions, I'm sure they have some procedure), and
>> the community agreed, then we can say it's a community action.
>
> Unfortunately for your point, not all legal concerns can be discussed
> with you in advance in public. If you think about it, you will see why.
>
>
> --Mike
>
>
>
>
>
> _______________________________________________
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> foundation-l@lists.wikimedia.org
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>

I agree that not all legal concerns can be discussed publicly, and
have made that point myself. And if the Foundation believes that there
is a legal concern, it can certainly OFFICE the article in question.

In this case, however, I did look at the deleted article. I agree that
portions of it which mentioned specific persons (for obvious reason, I
will not go into more detail here), were problematic. There certainly
are parts of the article which are well-supported by reliable sources,
however, and I fail to see why those should not remain.

As to the issue of "community vs. from above", if Jimbo or you
contacted me and said "Hey, Todd, you better take this given action,"
I would generally tend to consider that an official request. If we
wanted the community to decide, we should've let them decide through
normal processes. If action needed to be taken from above, it should
have been transparently (e.g., OFFICE) marked as action from above.
The attempt to make this look like a community decision when it really
appears to be a WMF mandate ("strong suggestion", or whatever we want
to call it) is what I find disturbing here.

--
Freedom is the right to say that 2+2=4. From this all else follows.

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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
Mike Godwin wrote:
> My view continues to be that the Foundation should almost never engage
> in direct editing or removal of project content, except (as in DMCA
> takedown notices) when we are required to do so by law.
>
> Anything else should normally entail engagement of community members.
>
To clarify, is this merely your personal view, or is it actually the
policy being adopted? That is, is [[en:WP:OFFICE]] now defunct?

-Mark


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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
Anthony writes:
>
> On Sun, May 18, 2008 at 10:10 AM, Mike Godwin
> <mgodwin@wikimedia.org> wrote:
>> My view continues to be that the Foundation should almost never
>> engage
>> in direct editing or removal of project content, except (as in DMCA
>> takedown notices) when we are required to do so by law.
>>
> FWIW, I think that's an absolutely terrible decision that is the cause
> of a great deal of completely unnecessary ill-will toward the
> Foundation and its projects.

I think there will be unnecessary ill will towards the Foundation and
its projects no matter what we do or do not do. That is the nature of
the world or at least of Foundation-l. But I think there would be more
unnecessary ill will towards the Foundation and its projects if the
Foundation used a heavier hand in removing content, precisely because
it would give rise to the expectation that the Foundation is
positioning itself in a fundamentally editorial role. Look how much
ill will is generated simply because I suggested to members of the
community that there are legal problems associated with a couple of
Wikinews articles! Thomas Dalton, for example, thanks that's the
equivalent of an order. Me, I think it's better to explain what's
going on and ask the community to do the right thing in the hope that
they will take my advice.

If I did what you suggest, and simply removed material from Wikinews
that I thought would generate a legal problem, there would still be
ill-will ("Censorship!"), and I'd still be called upon to justify the
removal, and there's still be ginned-up controversy. In addition,
potential litigants would perceive the Foundation as playing a heavier
editorial role than it does, and would be more likely to sue us in the
hope of either getting the statutory immunity overturned or of getting
it construed in a way that diminishes its protection. I believe it
helps to think through what the social consequences of the direct
action.

> The only semi-coherent explanation for
> it seems to be that it is required for protection under Section 230 of
> the CDA, but as you and I both know this is absolutely not correct.
> In fact, everything I have read on the matter suggests that the whole
> point of Section 230 of the CDA was to allow service providers to
> engage in direct removal of project content without becoming liable
> for that which it failed to remove.


That's a correct reading of the reasoning behind Sec. 230. And if
you're AOL or MSN or abc.com or Google, you can afford to pay for a
dozen summary judgments in your favor every week, on Sec. 230 grounds.

That's not us, however. Better than defending Sec. 230 every time it
comes up is to lower the public's expectation that the Foundation is
going to step in and fix everything for a would-be plaintiff. That
way, we spend less donated money on cases.

Now, you may be wealthy, Anthony, and so it may seem sensible to you
to invite lawsuits that you can then get dismissed on Sec. 230 grounds
-- a kind of very expensive version of whack-a-mole.

But if the purpose of our engagement with the community of editors is
to empower them to add to the availability of the sum of human
knowledge, then it makes sense to empower the community to fix as many
problems with the content they provide as possible, rather than take
that responsibility away from them and place it in, say, me or Sue or
Cary. So I prefer to advise community members rather than give them
orders (as if they felt any obligation to follow my orders, which
hardly anyone does), and I believe it's wiser to reserve my own
ability to remove content even though Sec. 230 allows it. That may
seem like an "absolutely terrible decision" to you (not merely
terrible, but "absolutely" so!), but perhaps you're a better attorney
than I am.

I should add that there is a complicating factor with regard to Sec.
230, and that's that while simple removal is protected, it's unclear
whether every court would agree that more subtle substantive editing
is protected -- by engaging in the development of the content of an
article, the Foundation and its agents or employees may
unintentionally negate Sec. 230 immunity, depending on the scope and
substance of the editing. That's a legal question that I'm studiously
avoiding investing the Foundation's donated funds in finding an answer
to. I'd rather see a richer defendant sort that one out for us.


--Mike







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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
Todd Allen writes:

> I agree that not all legal concerns can be discussed publicly, and
> have made that point myself. And if the Foundation believes that there
> is a legal concern, it can certainly OFFICE the article in question.

My belief is that OFFICE removals should be very rare, and that OFFICE
edits should be practically nonexistent.

> As to the issue of "community vs. from above", if Jimbo or you
> contacted me and said "Hey, Todd, you better take this given action,"
> I would generally tend to consider that an official request. If we
> wanted the community to decide, we should've let them decide through
> normal processes. If action needed to be taken from above, it should
> have been transparently (e.g., OFFICE) marked as action from above.

This is, if you think about it, a false dichotomy. There are choices
between OFFICE action and doing nothing. Those choices include
"giving advice" or "making a request." It depends on whether you think
the community should be empowered to make its own decisions but still
be able to hear advice or requests from the Foundation. I happen to
think that we're sufficiently unintimidating (witness this list, for
example) that advice or a request can be rejected.

> The attempt to make this look like a community decision when it really
> appears to be a WMF mandate ("strong suggestion", or whatever we want
> to call it) is what I find disturbing here.

So the theory here is that we're clever enough to cloak an OFFICE
action as a community action, and even to convince some community
members that they believe they're merely acting on advice rather than
under a "WMF mandate," but not quite clever enough to fool you about
our cloaked agenda?

I confess it is a terrible burden for us, being smart enough to cook
up such schemes but not smart enough to fool you entirely. :)


--Mike




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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
Delirium writes:

> To clarify, is this merely your personal view, or is it actually the
> policy being adopted? That is, is [[en:WP:OFFICE]] now defunct?


It's not defunct. Similarly, the death penalty may be on the books,
but that doesn't mean we should be executing more people.

I think WP:OFFICE has been over-invoked in the past, and in ways that
raise more questions than it solves. That's not the same thing as
abolishing WP:OFFICE, which we reserve the right to use.


--Mike





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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
Mike Godwin wrote:
> This is, if you think about it, a false dichotomy. There are choices
> between OFFICE action and doing nothing. Those choices include
> "giving advice" or "making a request." It depends on whether you think
> the community should be empowered to make its own decisions but still
> be able to hear advice or requests from the Foundation. I happen to
> think that we're sufficiently unintimidating (witness this list, for
> example) that advice or a request can be rejected.
>
Is that actually true? In the past, when "advice" or "a request" was
rejected, the parties doing the rejecting were later informed that the
"request" had in fact been binding (though that hadn't been stated
up-front), and some people were de-sysopped as a result. In one notable
incident, a current member of the board (Erik) was de-sysopped by Jimmy
in April 2006 for unprotecting an article that a Foundation
representative had protected, though that protection had not been
labeled as an official Foundation action.

There have been several of these incidents of
unofficial-but-really-we-mean-binding Foundation actions that I don't
believe it is actually true that "we're sufficiently unintimidating that
advice or a request can be rejected". For that to be true, the
Foundation needs to be *much* clearer about when it is giving advice
that can be rejected, versus orders that it will use its ownership over
the servers to enforce.

-Mark


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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
On Sun, May 18, 2008 at 2:38 PM, Mike Godwin <mgodwin@wikimedia.org> wrote:
> Anthony writes:
>>
>> On Sun, May 18, 2008 at 10:10 AM, Mike Godwin
>> <mgodwin@wikimedia.org> wrote:
>>> My view continues to be that the Foundation should almost never
>>> engage
>>> in direct editing or removal of project content, except (as in DMCA
>>> takedown notices) when we are required to do so by law.
>>>
>> FWIW, I think that's an absolutely terrible decision that is the cause
>> of a great deal of completely unnecessary ill-will toward the
>> Foundation and its projects.
>
> I think there will be unnecessary ill will towards the Foundation and
> its projects no matter what we do or do not do.

I meant to take care of that objection by the use of the word "unnecessary". :)

> But I think there would be more
> unnecessary ill will towards the Foundation and its projects if the
> Foundation used a heavier hand in removing content, precisely because
> it would give rise to the expectation that the Foundation is
> positioning itself in a fundamentally editorial role.

I don't think more than a very small number of people are ever going
to know what role the Foundation is positioning itself in. Even the
vast majority of project contributors don't have a clue whether the
Foundation removed those articles itself or they told someone else to
remove it or they pointed it out to someone who decided of their own
free will to remove it.

And of those who are inside enough to know the role the Foundation is
positioning itself in, it can easily be explained to them that removal
of content which clearly violates the pre-established and codified
terms of service is *not* the same as having an editorial role over
that content. When Yahoo removes a message from its message board
because it violates its terms of service, do people claim that they
now have an editorial role over all the other messages?

> Look how much
> ill will is generated simply because I suggested to members of the
> community that there are legal problems associated with a couple of
> Wikinews articles!

A lot of this was due to a misunderstanding of Section 230 of the CDA,
which I think you're promoting by this hands-off policy. A lot more
was due to what was at least perceived as an uneven application of
these so-called "suggestions". Some of it I think you'll get no
matter what, but I think a fairly applied policy of removal of certain
kinds of information will get less ill will than the current strategy.

> Thomas Dalton, for example, thanks that's the
> equivalent of an order.

I tend to agree with him there, actually.

> Me, I think it's better to explain what's
> going on and ask the community to do the right thing in the hope that
> they will take my advice.
>
And that's exactly what I think is so hugely irresponsible. The
foundation is routinely made aware of absolutely vile and libelous
content being broadcast via its servers. In those situations I think
it has a responsibility to remove that content, not to point it out to
someone and hope they do the right thing. These servers are the
property of the Wikimedia Foundation. The Wikimedia Foundation has
every right to enforce its terms of service for those who use its
property, and I'd say they have a responsibility to do so when they
are made aware of it.

> If I did what you suggest, and simply removed material from Wikinews
> that I thought would generate a legal problem, there would still be
> ill-will ("Censorship!"), and I'd still be called upon to justify the
> removal, and there's still be ginned-up controversy.

Right, taking responsibility for the content that you knowingly
broadcast to the world doesn't solve every problem, but it'd solve
others. I think John Seigenthaler, for instance, would have a lot
less of a problem with Wikipedia if the foundation would act to remove
vile content from the history of its biographies rather than telling
the community of the problem and hoping it figures out a solution.

I think another thing which can and should be done is to remove
unreviewed articles from Google searches, and to display only the
reviewed versions of an article to the public unless they explicitly
request the latest version. And I don't think the foundation should
wait around for the communities to magically reach a consensus on this
issue before implementing such a plan. And I don't think it's fair to
blame it all on Brion when it gets turned on, either (certain other
features seem to have been implemented that way). I believe this is
an executive decision that should come from the top down, either from
the executive director or from the board. You can blame it all on me
if you want, though (but make sure it's implemented according to my
specifications if you do so). :)

> In addition,
> potential litigants would perceive the Foundation as playing a heavier
> editorial role than it does, and would be more likely to sue us in the
> hope of either getting the statutory immunity overturned or of getting
> it construed in a way that diminishes its protection. I believe it
> helps to think through what the social consequences of the direct
> action.
>
I guess this is a possibility, though I find it hard to believe that
the current precedent that a service provider is exempt even from
knowingly distributing libelous content will stick. Whether the
courts or congress, something's gotta give. The WMF better hope it's
not the courts that give first, if it's going to stick with its
hands-off-lets-hope-the-community-does-something approach.

>> The only semi-coherent explanation for
>> it seems to be that it is required for protection under Section 230 of
>> the CDA, but as you and I both know this is absolutely not correct.
>> In fact, everything I have read on the matter suggests that the whole
>> point of Section 230 of the CDA was to allow service providers to
>> engage in direct removal of project content without becoming liable
>> for that which it failed to remove.
>
> That's a correct reading of the reasoning behind Sec. 230.

I'll be sure to webcite this email and link to it often. :)

> And if
> you're AOL or MSN or abc.com or Google, you can afford to pay for a
> dozen summary judgments in your favor every week, on Sec. 230 grounds.
>
> That's not us, however. Better than defending Sec. 230 every time it
> comes up is to lower the public's expectation that the Foundation is
> going to step in and fix everything for a would-be plaintiff. That
> way, we spend less donated money on cases.
>
> Now, you may be wealthy, Anthony, and so it may seem sensible to you
> to invite lawsuits that you can then get dismissed on Sec. 230 grounds
> -- a kind of very expensive version of whack-a-mole.
>
Nah, I've got the opposite defense. I'm broke, plus I live in Florida
(home of some of the world's most debtor-friendly asset protection
statutes), so there's no sense in anyone suing me in the first place.
The WMF is obviously in a more precarious position, being cash poor
but having some intangible assets with a high fair-market value.

> But if the purpose of our engagement with the community of editors is
> to empower them to add to the availability of the sum of human
> knowledge, then it makes sense to empower the community to fix as many
> problems with the content they provide as possible, rather than take
> that responsibility away from them and place it in, say, me or Sue or
> Cary. So I prefer to advise community members rather than give them
> orders (as if they felt any obligation to follow my orders, which
> hardly anyone does), and I believe it's wiser to reserve my own
> ability to remove content even though Sec. 230 allows it. That may
> seem like an "absolutely terrible decision" to you (not merely
> terrible, but "absolutely" so!), but perhaps you're a better attorney
> than I am.
>
My comment was not made from a legal standpoint. It may very well be
slightly less risky from a legal standpoint to take this hands-off
approach. I do find that hard to believe, because basically no other
service provider in the US is adopting this extreme of a position, but
then again the WMF does run by leaps and bounds the world's largest
non-profit website. But to my mind the risk is worth taking, because
the alternative is so outrageous. I guess you wouldn't make this
information public, but maybe you can tell the board your estimate of
exactly how much greater a risk it'd be facing by adopting a hands-on
approach to removal of libel.

> I should add that there is a complicating factor with regard to Sec.
> 230, and that's that while simple removal is protected, it's unclear
> whether every court would agree that more subtle substantive editing
> is protected -- by engaging in the development of the content of an
> article, the Foundation and its agents or employees may
> unintentionally negate Sec. 230 immunity, depending on the scope and
> substance of the editing. That's a legal question that I'm studiously
> avoiding investing the Foundation's donated funds in finding an answer
> to. I'd rather see a richer defendant sort that one out for us.
>
On this point, I think I agree.

Anthony

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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
Delirium wrote:
> In one notable
> incident, a current member of the board (Erik) was de-sysopped by Jimmy
> in April 2006 for unprotecting an article that a Foundation
> representative had protected, though that protection had not been
> labeled as an official Foundation action.

I did not de-sysop Erik, ever. To the contrary, actually.

Please be careful about making such dramatic claims.

--Jimbo

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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
David Goodman wrote:
> Libelous content is one thing; but as for "vile" -- there are a lot
> of vile things and people in the world, and we need to cover them
> objectively. Is it being seriously suggested the foundation intends to
> remove sourced negative content depicting evil aspects fairly and
> frankly when appropriate to an article? Or articles about people
> that when written fairly inherently contain sourced strongly negative
> content?


I know of no one who has proposed any such thing.

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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
On Sun, May 18, 2008 at 4:34 PM, Jimmy Wales <jwales@wikia.com> wrote:
> David Goodman wrote:
>> Libelous content is one thing; but as for "vile" -- there are a lot
>> of vile things and people in the world, and we need to cover them
>> objectively. Is it being seriously suggested the foundation intends to
>> remove sourced negative content depicting evil aspects fairly and
>> frankly when appropriate to an article? Or articles about people
>> that when written fairly inherently contain sourced strongly negative
>> content?
>
> I know of no one who has proposed any such thing.
>
Rereading what I wrote I apparently forgot to add "and libelous" to
one of my instances of vile. I realized as I was writing this that
someone might misunderstand what I was saying in exactly this way.

But to clarify, I was talking about Encyclopedia Dramatica type stuff,
not neutrally and objectively covered unpleasant material.

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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
On Sun, May 18, 2008 at 2:38 PM, Mike Godwin <mgodwin@wikimedia.org> wrote:
> But if the purpose of our engagement with the community of editors is
> to empower them to add to the availability of the sum of human
> knowledge, then it makes sense to empower the community to fix as many
> problems with the content they provide as possible, rather than take
> that responsibility away from them and place it in, say, me or Sue or
> Cary. So I prefer to advise community members rather than give them
> orders (as if they felt any obligation to follow my orders, which
> hardly anyone does), and I believe it's wiser to reserve my own
> ability to remove content even though Sec. 230 allows it. That may
> seem like an "absolutely terrible decision" to you (not merely
> terrible, but "absolutely" so!), but perhaps you're a better attorney
> than I am.
>
One other point, and then I'm done for the day. What is the
foundation going to do when the people who would otherwise sue the
foundation realize they can't do so and turn to the community members
who implement these "suggestions" and sue them instead? Will it help
them defend themselves, or will it leave them to fend for themselves?
Either way, the Section 230 protections of these volunteers is likely
weaker, so the cost for them to defend themselves will likely be
greater.

I guess most of them do have going for them the same luxury as I do,
though - that of being too poor to bother suing.

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Re: Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act [ In reply to ]
On Sun, May 18, 2008 at 12:58 PM, Mike Godwin <mgodwin@wikimedia.org> wrote:
>
> Todd Allen writes:
>
>> I agree that not all legal concerns can be discussed publicly, and
>> have made that point myself. And if the Foundation believes that there
>> is a legal concern, it can certainly OFFICE the article in question.
>
> My belief is that OFFICE removals should be very rare, and that OFFICE
> edits should be practically nonexistent.
>

On that, I would agree. However, when it -is- WMF taking an official
action, it should be clearly marked as such. If it is not, it should
be made absolutely, 100% clear that this is "Mike Godwin, the editor"
not "Mike Godwin, the WMF representative" putting forth the position.
What should be studiously avoided (ESPECIALLY in cases where the
material at issue is critical of WMF) is some grey area between the
two.

>> As to the issue of "community vs. from above", if Jimbo or you
>> contacted me and said "Hey, Todd, you better take this given action,"
>> I would generally tend to consider that an official request. If we
>> wanted the community to decide, we should've let them decide through
>> normal processes. If action needed to be taken from above, it should
>> have been transparently (e.g., OFFICE) marked as action from above.
>
> This is, if you think about it, a false dichotomy. There are choices
> between OFFICE action and doing nothing. Those choices include
> "giving advice" or "making a request." It depends on whether you think
> the community should be empowered to make its own decisions but still
> be able to hear advice or requests from the Foundation. I happen to
> think that we're sufficiently unintimidating (witness this list, for
> example) that advice or a request can be rejected.

Certainly. Once again, you have every right to nominate the article
for deletion, using whatever normal process Wikinews uses to determine
whether an article should be deleted or not, and allow the community
(you know, the whole community) to make the decision. You, in
particular, are also empowered to say "Folks, this has got to go,
NOW", and OFFICE it. Again, what should not happen is some "grey area"
thing, where you choose the target and someone else summarily pulls
the trigger, and again, this distinction should be most carefully
maintained in areas where the article paints an unflattering picture
of WMF.

>
>> The attempt to make this look like a community decision when it really
>> appears to be a WMF mandate ("strong suggestion", or whatever we want
>> to call it) is what I find disturbing here.
>
> So the theory here is that we're clever enough to cloak an OFFICE
> action as a community action, and even to convince some community
> members that they believe they're merely acting on advice rather than
> under a "WMF mandate," but not quite clever enough to fool you about
> our cloaked agenda?
>
> I confess it is a terrible burden for us, being smart enough to cook
> up such schemes but not smart enough to fool you entirely. :)
>

I'm sure it's terrible, and I do feel for you. Tomorrow, I'll be
exposing your global-domination scheme, just you wait! :)

In all seriousness, you may have done this with the best of motives,
and really, I don't think you're a bad guy, I'm willing to give you
the benefit of the doubt and say you did. But especially when the
involved article is unflattering to WMF, it looks bad. I think the
legal or quasi-legal term is "appearance of impropriety." Whether or
not you had bad motives here, it smells bad for this to be done
through the back door, with a few words whispered in a few ears,
rather than one of: "I am going to OFFICE this, because I believe it's
that bad, and I'll take the heat", or "Well, it's questionable, but
I'll put my two cents in and then let the community decide through its
normal processes whether that's enough concern to get rid of it."

>
> --Mike
>
>
>
>
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--
Freedom is the right to say that 2+2=4. From this all else follows.

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